N. ADAMS, SURVIVING PARTNER OF THE LATE FIRM OF ADAMS BROS., APPELLANT,
v.
ELIZABETH DAVIS, ET AL., APPELLEES
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The Florida Supreme Court reversed an order sustaining a demurrer to a bill of review filed by mortgagees seeking to correct an innocent mistake in the legal description of mortgaged property. The court held that where no conveyance has been made under a foreclosure sale and the error is discovered before deed execution, the mortgagees may proceed to correct the description through a bill of review without inequitable laches affecting the parties' rights.
The court held that the bill of review should be allowed to proceed. The mortgagees may correct the innocent mistake in the mortgage description through a bill of review, and the decree may be opened to permit the corrected mortgage to be foreclosed anew. The court emphasized that substantial rights are not inequitably affected and that laches does not bar relief under these circumstances.
“The purpose of the bill of complaint in this cause is to correct an innocent mistake, and whether it should be, and in form is, a bill of review or a bill in the nature of a bill of review or a supplemental bill in the nature of a bill of review, or of other technical character and form, its purpose should be effectuated if no substantial rights are thereby inequitably affected.”
Establishes that substance over form applies to bills of review and that technical defects should not bar relief where no substantial rights are harmed.
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Join FLexlaw to unlock all legal intelligenceIn 1898, Benjamin Davis and his wife executed a mortgage to Adams Bros. covering certain land in Suwannee County, Florida, intending to except forty a…
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Whitfield, C. J.
— This appeal is from an order sustaining a demurrer to a bill of review brought by the-mortgagees to correct an error in the description of land in a mortgage that had been foreclosed, but no conveyance-made of the land under the sale made pursuant to-the decree. The demurrer was addressed to the merits and not to the form of the bill.
It appears that in 1898 Benjamin Davis and Elizabeth Davis, his wife, executed a mortgage to Adams Bros, covering the SE¿- of NE¿ and the NE¿ of SE-£ Sec. 20, T. 1, S. R. 13 E. in Suwannee County, Florida, (except forty acres in Northeast corner) ; SW£ of NE-J and NW£ of SEJ Sec. 20, T. 1, S. R. 13 E. Davis and wife having-conveyed forty acres of the land, intended the mortgage they gave to Adams Bros., to except that forty acres, but by mistake Davis indicated to the mortgagees that the N. E. forty should be excepted when it was intended that the N. W. forty should be excepted, that being the forty previously sold by Davis to another party. -The error went in to the mortgage, the bill of foreclosure, the decree and the sale, but the mistake was discovered before a deed was executed under the sale. A member of the mortgagee firm and the mortgagor Benjamin Davis both died after the foreclosure decree, Benjamin Davis having-died after the order allowing the bill of review to be filed was served on him. No deed under the foreclosure sale has been made. See Fisher v. Villamil, 62 Fla. 472, 56 South. Rep. 559; Powers v. Scales, 61 Fla. 717, 55 South. Rep. 799; Thompson v. Maxwell, 16 Fla.
773. The purpose of the bill of complaint in this cause is to correct an innocent mistake, and whether it should be, and in form is, a bill of review or a bill in the nature of a bill of review or a supplemental bill in the nature , of a bill of review, or of other technical character and form, its purpose should be effectuated if no substantial rights are thereby inequitably affected. Its seems clear that the mortgagees did not know of and were not responsible for the error in the mortgage, or for the delay in discovering it; and in view"of the circumstances laches of a nature to affect inequitably the rights of any one do not appear. On the bill of review the decree may be opened and by appropriate proceedings the mortgage may be corrected and foreclosed with the present pleadings as a basis for subsequent proceedings, even if the subject-matter was homestead real estate. The intention of the parties may be effectuated through their successors in title when it is both legal and equitable to do so. By demurring to the bill of review the appellees have appeared in the cause as the legal representatives of ..Benjamin Davis the mortgagor. The order appealed from is reversed.
Taylor, Shackleford, Cockrell and Hocker, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morton v. Smith, 133 Fla. 260 (Fla. 1938)…eed. In other words, the' chancellor took judicial knowledge of the matters and pleadings in this suit. Appellee contends that the decree of the chancellor should he affirmed and relies on Fisher v. Vilamil, 62 Fla. 472, 56 So. 559; Adams v. Davis, 63 Fla. 324, 58 So. 837, and 23 R. C. L. 317-318, to support his contention. Smith v. Patti-shall, 176 So. 568, was also cited. These cases involve foreclosures where the wrong property was described in the mortgage foreclosed. The main question was that of cor…
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Adams v. Elizabeth Davis and Others, 67 Fla. 200 (Fla. 1914)…[*201] Cockrell, J.- For a statement of the bill of review in this case, reference may be had to the opinion of the court upon the former appeal, Adams v. Davis, 63 Fla. 324, 58 South. Rep. 837. We there held that the complainant had stated a case for equitable relief. Thereafter the defendants, Elizabeth Davis and Elizabeth McQuay answered the bill under oath and evidence was taken, resulting in a dismissal of the bill…
Authorities Cited
- Thompson v. Maxwell, 16 Fla. 773 (Fla. 1878)
- Fisher v. Villamil, 62 Fla. 472 (Fla. 1911)
- Powers v. Scales, 61 Fla. 717 (Fla. 1911)